USA v. Robert Jerlow

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 25, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11929
Non-Argument Calendar
________________________
D.C. Docket No. 8:08-cr-00340-VMC-TBM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT JERLOW,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 25, 2012)
Before MARCUS, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:

-- 1 of 6 --

Robert Jerlow appeals his sentence of 33 months of imprisonment following
his plea of guilty to using a communication facility in facilitating a conspiracy to
distribute and possess with the intent to distribute five or more kilograms of
cocaine. 21 U.S.C. § 843(b). Jerlow argues that the government breached its plea
agreement, he was denied a fair sentencing hearing, and his sentence is
unreasonable. The government argues that Jerlow’s last argument is barred by the
appeal waiver in his plea agreement. We affirm in part and dismiss in part.
Jerlow and the government entered a plea agreement. The government
agreed to recommend that Jerlow receive a three-level adjustment for his
acceptance of responsibility, United States Sentencing Guidelines Manual § 3E1.1
(Nov. 2010), and to “consider whether [any] additional cooperation [from Jerlow]
qualifie[d] as ‘substantial assistance’ . . .[that would] warrant[] the filing for a
further reduction of sentence pursuant to USSG §5K1.1 and/or Fed. R. Crim. P.
35(b).” The agreement provided that Jerlow “underst[ood] that the determination”
of whether his cooperation qualified as substantial assistance “rest[ed] solely with
the United States Attorney for the Middle District of Florida,” and that Jerlow
“[could not] and [would] not challenge that determination, whether by appeal,
collateral attack or otherwise.” In the agreement, the government also “reserved
its right and obligation to report to the Court and the United States Probation
2

-- 2 of 6 --

Office all information concerning [Jerlow’s] background, character and conduct,
to provide relevant factual information, including the totality of [his] criminal
activities . . . not limited to the count[] to which [he] plead[ed],” and “to make any
recommendations it deem[ed] appropriate regarding the disposition of [his] case.”
Jerlow agreed to waive his right to appeal or challenge collaterally his sentence,
subject to three exceptions: his sentence “exceed[ed] the . . . applicable guidelines
range as determined by the Court”; his sentence exceeded the statutory maximum
penalty; or his sentence violated the Eighth Amendment.
At the change of plea hearing, a magistrate judge discussed the plea
agreement with Jerlow. Jerlow said that he understood that the government could
disclose to the district court information unfavorable to him; the provision in the
plea agreement “allow[ed] the government to come to [Jerlow’s] sentencing and
speak in aggravation”; and the disclosure of adverse information did “not . . .
breach . . . the agreement.” Jerlow also stated that he understood that he had
waived his right to appeal his sentence, subject to the three exceptions. The
district court later accepted Jerlow’s plea of guilty.
The government and Jerlow moved for Jerlow to receive a downward
departure based on his substantial assistance. See U.S.S.G. § 5K1.1. The
government moved for Jerlow to receive only a three-level downward departure
3

-- 3 of 6 --

because, although he had cooperated with law enforcement, the information he
had provided had not been helpful and he allegedly had defrauded two persons
while serving as a cooperating defendant. Jerlow moved for a 14-level downward
departure and a sentence of 5 months of probation, which was two months longer
than a sentence imposed on a female codefendant whom Jerlow had recruited to
broker cocaine. Jerlow attached to his motion a personal log that recorded his
cooperation with law enforcement.
At the sentencing hearing, Jerlow argued that the government had breached
the plea agreement, but the district court disagreed. The district court granted
Jerlow a three-level downward departure for his substantial assistance and
determined that he had an advisory guideline range between 33 and 41 months of
imprisonment. The district court sentenced Jerlow to a term of imprisonment at
the low end of the guideline range.
The district court did not err when it ruled that the government complied
with its plea agreement. Jerlow argues that the government violated the agreement
by disclosing information detrimental to him, but Jerlow acknowledged during his
guilty plea colloquy that the government had the right to disclose information that
was adverse to him. Jerlow also argues that the government failed to disclose the
“nature and extent of [his] cooperation,” but the government acknowledged that
4

-- 4 of 6 --

Jerlow cooperated fully, the government had available at the sentencing hearing an
agent to testify about Jerlow’s cooperation, and Jerlow submitted to the district
court a personal log about his cooperation. The government retained in the plea
agreement discretion to determine whether Jerlow had provided substantial
assistance and to what extent he was entitled, if at all, to a reduction of his
sentence. See United States v. Forney, 9 F.3d 1492, 1499–1500 (11th Cir. 1993).
The government did not breach its agreement by arguing that Jerlow was entitled
to a three-level downward departure.
Jerlow argues, for the first time, that the district court made statements that
reveal that it denied Jerlow a fair sentencing hearing, but we disagree. The district
court stated that it had deferred “generally” to the recommendations of the
government about what extent to depart downward for substantial assistance and
had “departed differently” on previous occasions, but Jerlow had failed to provide
a “good reason” to do so “in this case.” These remarks are consistent with the
recommendation in the advisory guidelines that a district court give “[s]ubstantial
weight . . . to the government’s evaluation of the extent of the defendant’s
assistance,” U.S.S.G. § 5K1.1 cmt. n.3, and with the “‘reasonable assumption that
the government is in the best position to supply the court with an accurate report
of the extent and effectiveness of the defendant’s assistance,’” United States v.
5

-- 5 of 6 --

Chotas, 913 F.2d 897, 901 (11th Cir. 1990) (quoting United States v. White, 869
F.2d 822, 829 (5th Cir. 1989)). The district court stated that, based on its
experience in a “lot of sentencings,” Jerlow deserved a sentence of imprisonment
because he had delayed pleading guilty and had been a “bigger player” in the
conspiracy. “[D]istrict courts are given . . . wide latitude in sentencing . . .
[because of] their experience in handling criminal cases,” United States v. Shaw,
560 F.3d 1230, 1238 (11th Cir. 2009), and the district court was entitled to rely on
its experience to fashion a sentence appropriate for Jerlow.
Jerlow argues that his sentence is unreasonable, but the argument is barred
by the appeal waiver in Jerlow’s plea agreement. Jerlow knowingly
and voluntarily waived the right to appeal this aspect of his sentence. See United
States v. Benitez-Zapata, 131 F.3d 1444, 1446–47 (11th Cir. 1997). We dismiss
the appeal of this issue.
We AFFIRM Jerlow’s conviction. Jerlow’s appeal of his sentence is
DISMISSED.
AFFIRMED IN PART, DISMISSED IN PART.
6

-- 6 of 6 --